TaxTMI 
TaxTMI 
TaxTMI 
1972 (8) TMI 131
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....T KHUSHBUON Ka Badahah". The cartoons and receptacles were of green colour and had on them in print the name of the manufacturer, namely, 'Basant Bahar Perfumery Co. Shahabad". Sheojanam Prasad thereafter ,applied before the Registrar of Trade Marks for registration or the trade mark. The application was, however, not granted as it contained certain technical defects. His case was that nonetheless the said scent with the aforesaid marks became popular in the market as the scent manufactured and sold by him. The case of Sheojanam Prasad was that the appellant was ,also conducting a provisions store in Arrah. Finding that his Basant Bahar scent had become popular, the appellant put out for sale a scent prepared by him and gave it the name of Pushp Rai. The Pushp Raj scent, however, did not become popular with customers. The appellant, therefore, started putting out for sale his said scent under the name of Basant Bahar in cartoons and receptacles, similar to those of his (Sheojanam Prasad), in the same colour, shape and size, except for one particular only, namely, the name of the manufacturer, such name being Basant Bahar Chemical Co. Ltd., Shahabad. In para 14 ,and 15 of his compl....
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....nclusion was arrived at on the reading of the complaint to mean allegations of counterfeiting the complainant's trade mark by the appellant and not the property mark. He also held that after the passing of the Trade and Merchandise Marks Act, 1958 such counterfeiting of trade mark was no longer an offence under the Penal Code. The complainant thereupon filed an appeal in the High Court. Pending the appeal the complainant, as aforesaid, died on July 22, 1967. Two questions in the main were canvassed before the High Court; (1) whether on the death of the com- plainant the appeal filed by him abated, and whether his son Ashok Kumar could be brought on record as the legal repre- sentative of the deceased complainant, and (2) whether on the averments in the complaint and the evidence on record a case of counterfeiting the property mark of the complainant could be maintained. The High Court was of the view that there was no provision in the Code of Criminal Procedure under which a legal representative of a deceased complainant could apply for being bought on record for the purpose of continuing an appeal filed by such a complainant. On that view. the High, Court dismissed the applicatio....
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....f indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use that mark. The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, to give an indication to his eye of the trade source from Which the goods come, or the trade hands through which they pass on their way to the market. (per Bowen, L.J., in In re Powell's Trade Mark ((1) (1893) 10 R.P.C. 200). On the other hand, a property mark, as defined by s. 479 of the Penal Code means a mark used for denoting that a movable property belongs to a particular person. Thus, the distinction between a trade mark and a property mark is that whereas the former denotes the manufacture or quality of the goods to which it is attached, the latter denotes the ownership in them. In other words, a trade mark concerns the goods themselves, while a property mark concerns the proprietor. A property mark attached to the movable property of a person remains even if part of such property goes out of his hands and ceases to be his. In Emperor v. Dahyabhai Chakasha( (1904) 6 Bom. L.R. 513.) the....
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....with a bunch of flowers in her hands printed on the packets and receptacles in which the said scent was packed with an inscription "Basant Bahar Scent, Kbushbuon Ka Badshah" and at the foot of such packets and receptacles the inscription Basant Bahar Perfumery Co., Shahabad. In para 12, he averred that when his scent gained market and popularity the appellant brought out in the market scent manufactured by him under the name of Pushp Raj, having a picture of a lady printed on the packets and receptacles, but the scent failed to get customers. In para 14, he pleaded that the scent 'Pushp Raj' having failed, the accused adopted "ways and mens of destroying the business credit of Basant Bahar by surreptitiously and fraudulently and deliberately printing Trade Mark Label of Basant Bahar and packing scents in receptacles of various varieties with inferior kind of scent which are easily being palmed off as the genuine 'Basant Bahar' or the complainant with the result that the accused uses false trade mark and sells inferior quality of Basant Bahar to defame and destroy the good name of the complainant and his scent Basant Bahar and make illegal gain for himself." In para 15, he pleaded ....